The USDA Swampbuster: Avoid Getting Stuck

Untamiliarity with the law and how wetlands are defined can lead to seven-figure fines.

- John J. Schwarz, II

Not all USDA-classified wetlands look like wetlands.

In 1985, Congress passed the Food Security Act, a comprehensive framework to administer agriculture and food programs. It included establishing the Erodible Land and Wetland Conservation and Reserve Program. The conservation and reserve components are affectionately (or perhaps unaffectionately) referred to as "Sodbuster" and "Swampbuster," respectively.

Swampbuster's purpose is to conserve and preserve wetlands and protect natural resources for a public purpose, including to "assist in preserving the values, acreage, and functions of the nation's wetlands."

Keeping Wetlands Wetlands

To achieve those conservation goals, Swampbuster bars producers who convert wetlands to tillable cropland from receiving certain USDA benefits such as direct payments and crop insurance subsidies. By enrolling in USDA programs that provide those benefits and submitting the required AD-1026 form to their local NRCS office, a farmer agrees to the "compulsory conservation" of keeping wetlands intact.

Dec. 23, 1985, is an important date. If land — even former wetland — was farmed before then, Swampbuster provisions generally do not apply. In land not farmed before then, the USDA's' “swamp monster” lies in wait for those who violate the provisions.

A landowner who wants to remove woody vegetation or install drainage tile is expected to provide an updated AD-1026 to the NRCS. Question 7 asks if anyone has engaged in certain activities since Dec. 23, 1985, or will in the future.

The form also asks if anyone has or will "perform any activities to create new drainage systems, conduct land leveling, filling, dredging, land clearing, or excavation that has NOT been evaluated by NRCS." If the answer is yes, the farmer must indicate the years those activities have occurred or will occur.